PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Russell, S.J.
CHERYL KASHAWN JONES
OPINION BY
v. Record No. 052533 JUSTICE G. STEVEN AGEE
November 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
Cheryl Kashawn Jones appeals from the judgment of the Court
of Appeals of Virginia, which affirmed her conviction for felony
child neglect, in violation of Code § 18.2-371.1(B)(1), in the
Circuit Court of the City of Norfolk. On appeal, she contends
the evidence was insufficient to prove she willfully failed to
provide care for her child in a manner so gross, wanton, and
culpable as to show a reckless disregard for the child’s life.
For the reasons set forth below, we will affirm the judgment of
the Court of Appeals.
I. RELEVANT FACTS AND PROCEEDINGS BELOW
Under well-settled principles of appellate review, we
consider the evidence presented at trial in the light most
favorable to the Commonwealth, the prevailing party in the trial
court. “We also accord the Commonwealth the benefit of all
inferences fairly deducible from the evidence.” Riner v.
Commonwealth, 268 Va. 296, 303, 601 S.E.2d 555, 558 (2004); see
also Burns v. Commonwealth, 261 Va. 307, 313-14, 541 S.E.2d 872,
877-78, cert. denied, 534 U.S. 1043 (2001).
The evidence at trial established that, on October 23,
2003, fifteen City of Norfolk police officers, dressed in body
armor and ballistic helmets, executed a search warrant at Jones’
apartment. During the week prior to execution of this warrant,
officers gathered evidence sufficient to obtain an immediate-
entry search warrant for Jones’ apartment.
Investigator Frank Curott 1 of the Norfolk Police
Department’s Vice and Narcotics Division testified that police
conducted extensive surveillance of Jones’ apartment and
observed heavy foot traffic going in and out. A confidential
informant, who made undercover purchases of narcotics at the
apartment, informed the police that lookouts were stationed both
day and night in the hallways leading to the apartment. The
informant also told police that weapons were in the apartment
and that several individuals were selling narcotics from it.
As police arrived to execute the search warrant, Jones’
brother stepped out of the apartment. Upon seeing the officers,
he attempted to run back inside, but Investigator Curott pushed
him to the floor. Curott and the other officers, with weapons
drawn, then entered the apartment which was filled with trash
and debris. In moving through the apartment, Curott first saw
Jones, her sister, and her sister's boyfriend in the living
2
room. Curott then entered a bedroom where a child was alone on
the bed doing his homework. In the next bedroom, Curott found
seven other unattended children ranging in age from infancy to
seven or eight years old.
The child in the first bedroom was Jones’ eight-year old
son, Donya Deshawn Jones, who was working on his schoolwork
while lounging on the bed with his head toward the foot of the
bed and his feet by a nightstand at the head of the bed. On the
nightstand within arm’s reach of the young boy, Curott found a
medicine bottle containing fourteen capsules of heroin. The cap
of the medicine bottle contained an instruction to “Push Down &
Turn” to open the container, sometimes termed a “childproof”
container. Under the mattress below the child's head, Curott
found a dinner plate dusted with cocaine residue and drug
packaging materials. Jones was indicted for violating Code
§ 18.2-371.1(B)(1) with regard to her son, Donya. 2
Evidence at Jones’ bench trial established that she sold
approximately twenty capsules of heroin daily from the
apartment. When asked why she left her son alone in the bedroom
with capsules of heroin within his reach, Jones replied: “I
1
The name of Investigator Curott was spelled “Currot” in
the Court of Appeals opinion. According to the trial
transcript, the correct spelling is “C-U-R-O-T-T.”
2
Although a total of eight children were in the apartment
at the time of the police raid, Jones is only charged with
violating Code 18.2-371.1(B)(1) in regard to Donya.
3
watch at least ten kids, and I can’t keep track of everything.”
In finding the evidence sufficient to convict Jones on the
charge of felony child neglect, the trial court explained its
decision as follows:
Given the evidence of what the behavior was and the
actions that were ongoing inside of the residence just
moments prior to and at the time of the execution of
the search warrant, that is always part and parcel of
the drug trade. There's evidence that there were
guards outside. . . . that there was foot traffic
. . . for the week prior. . . .
The child was in proximity to a container of 14
capsules of heroin in excess of a gram, 1.015
grams. . . .
And although you make a point about a childproof
container, this is an eight-year old child. This is
not a baby whose motor skills have not developed. . .
. And the mother's statement admits that she's selling
some 20 capsules a day for the last three months out
of the apartment.
The fact that this was there demonstrates. . .
further evidence of an ongoing activity on her part.
So she's placed him in a position where he has direct,
personal access to a drug that can cause death if
overdosed. . . .
So she's placed her child in a position where
he's likely or reasonably likely to perhaps take the
drug by accident and unwittingly and seriously injure
himself or kill himself. Then on top of that, she's
engaged in an activity that creates a high risk of
violence. . . .
[W]hen a large team of narcotics investigators
armed with a no-knock search warrant goes into an
apartment in heavy body armor and armed with their
weapons drawn, anything can happen. . . .
[T]hose are the things that the mother fails to
account for by engaging in this high risk, dangerous
activity with her son right there in the middle of it
all.
On appeal to the Court of Appeals, Jones contended that the
possession and sale of heroin and cocaine, at her residence and
4
in close proximity to her eight-year old son, without more, did
not violate Code § 18.2-371.1(B)(1). The Court of Appeals
disagreed and affirmed Jones’ conviction, finding that “[i]t is
this drug activity, both the sale of drugs from the apartment
and the presence of a controlled substance in close proximity to
the child, that constitutes the willful act required by the
statute.” Jones v. Commonwealth, 46 Va. App. 713, 719, 621
S.E.2d 676, 679 (2005). The Court of Appeals concluded “[t]his
type of inherently dangerous situation clearly poses a
substantial risk of serious bodily injury or harm to the child.”
Id. at 724, 621 S.E.2d at 681. We awarded Jones this appeal.
II. ANALYSIS
On appeal to this Court, Jones contends, as she did below,
that her conviction under Code § 18.2-371.1(B)(1) should be
reversed because her conduct was insufficient to demonstrate a
gross, wanton, and willful disregard for human life.
Specifically, she contends that her possession and sale of
illicit drugs from her residence and the presence of such drugs
in close proximity to her son, without more, does not constitute
felony child neglect under Code § 18.2-371.1(B)(1). Jones also
argues that the Commonwealth only proved the mere possibility of
harm to Donya and that the Commonwealth was required to
demonstrate the probability of harm beyond a reasonable doubt in
order to sustain a conviction. Jones further contends that to
5
convict her of felony child neglect would be to establish a per
se rule that any time there are illicit drugs in a home, the
parent or person responsible for a child is guilty of violating
Code § 18.2-371.1(B)(1).
In response, the Commonwealth argues that although Donya
did not ingest the heroin capsules or cocaine residue or sustain
a gunshot wound from the police raid, this does not diminish the
probability of serious injury or death under those
circumstances. Further, the Commonwealth argues no per se rule
was applied in this case as the Court of Appeals and the trial
court relied on the totality of the evidence in their respective
decisions.
Code § 18.2-371.1(B) provides in relevant part:
(1) Any parent, guardian or other person responsible
for the care of a child under the age of 18 whose
willful act or omission in the care of such child was
so gross, wanton and culpable as to show a reckless
disregard for human life shall be guilty of a Class 6
felony.
To support a conviction under this statute, the
Commonwealth had to establish that Jones, through her willful
act or omission, showed a reckless disregard for her son’s life.
Barrett v. Commonwealth, 268 Va. 170, 183, 597 S.E.2d 104, 110-
11 (2004). “[S]uch ‘reckless disregard’ can be shown by conduct
that subjects a child to a substantial risk of serious injury,
as well as a to a risk of death, because exposure to either type
6
of risk can endanger the child’s life.’ ” Commonwealth v.
Duncan, 267 Va. 377, 385, 593 S.E.2d 210, 215 (2004); see also
Barrett, 268 Va. at 186, 597 S.E.2d at 112.
Jones appears to argue that the standard of proof to show
“reckless disregard” under Code § 18.2-371.1(B)(1) was altered
in Duncan and Barrett from acts showing a “probability” of
serious injury or death to an unexplained lesser standard of
“substantial risk” of such injury. This argument has no merit.
In Duncan and Barrett we specifically cited to Cable v.
Commonwealth, 243 Va. 236, 415 S.E.2d 218 (1992), and quoted the
Cable standard in Barrett that the defendant’s conduct was
“reasonably calculated to produce injury, or which [made] it not
improbable that injury [would] be occasioned, and [she knew], or
[was] charged with the knowledge of, the probable results of
[her] acts.” Barrett, 268 Va. at 184, 597 S.E.2d at 111 (quoting
Cable, 243 Va. at 240, 415 S.E.2d at 220). To the extent any
confusion could exist, we consider a substantial risk of injury
and a probability of injury to be synonymous or interchangeable
terms for purposes of our analysis under Code § 18.2-
371.1(B)(1).
To be willful, conduct “must be knowing or intentional,
rather than accidental, and be done without justifiable excuse,
without ground for believing the conduct is lawful, or with a
bad purpose.” Duncan, 267 Va. at 384, 593 S.E.2d at 214. When
7
examining the term “willful” in the context of Code § 18.2-
371.1(B)(1), the term “contemplates an intentional, purposeful
act or omission in the care of a child by one responsible for
such child's care.” Id. at 385, 593 S.E.2d at 215. Ordinary
negligence resulting from inattention and inadvertence is
insufficient. See Barrett, 268 Va. at 184, 597 S.E.2d at 111.
Unlike Code § 18.2-371.1(A), which requires an actual injury for
a conviction, subsection (B)(1) “does not require that a child
actually suffer serious injury as a result of a defendant's acts
or omissions.” Duncan, 267 Va. at 385, 593 S.E.2d at 215.
This Court has not addressed whether a child's mere
proximity to illegal narcotics creates a substantial risk of
bodily harm. In that regard, it is instructive to consider the
decisions of the highest courts of other states in analogous
situations construing statutes like Code § 18.2-371.1(B)(1).
For example, in State v. Graham, 109 P.3d 285 (N.M. 2005),
the New Mexico Supreme Court upheld a felony child abuse
conviction against parents who left marijuana and drug
paraphernalia in the immediate vicinity of young children. Id.
at 291. The evidence at trial in Graham showed that police
officers executing a search warrant at defendant’s house
discovered crack cocaine and several plastic bags with marijuana
in the house, but also found a marijuana “roach” on the living
room floor and a marijuana “bud” in a baby’s crib. Id. at 287.
8
In upholding the defendant’s conviction, the Graham court
rejected his claim of insufficient evidence, ruling “[w]e
believe that this evidence supports a reasonable inference that
the children were in the immediate vicinity of the marijuana,
that it was accessible to them, and that there was a reasonable
possibility that they would come in contact with the controlled
substance.” Id. at 289.
Similarly, in State v. Padua, 869 A.2d 192 (Conn. 2005),
the Supreme Court of Connecticut affirmed the convictions of
three defendants who kept marijuana in close proximity to two
children, ages seven and three. These convictions resulted from
evidence discovered when police officers executed a search
warrant on the defendants' home and found marijuana on the
kitchen table being packaged for sale and large amounts of
marijuana in different locations throughout the house. Id. at
199.
In affirming the convictions under the Connecticut child
endangerment statute, the Connecticut Supreme Court concluded
that the only question the jury needed to answer was whether the
ingestion, oral or otherwise, of marijuana would be likely to
injure the child. Id. at 207. Under the circumstances of that
case, the court concluded that the mere presence of marijuana
was sufficient to create a likelihood of injury to the child.
Id. at 208.
9
In the case at bar, much as in Padua and Graham, the
illegal drugs were within arm's reach of an unattended young
child. The record reflects that Donya was found alone in a
bedroom lying on the bed doing his homework. On the nightstand
within arm’s reach of Donya was a medicine bottle, closed with a
childproof cap, containing fourteen capsules of heroin. Under
the mattress below his head was a dinner plate with cocaine
residue and drug packaging materials. Jones does not contest
that she knew the drugs were in the bedroom with Donya.
As we stated in Duncan, "based on the evidence presented,
the dangers inherent in such a situation could be inferred by
the fact finder as a matter of common knowledge." Duncan, 267
Va. at 386, 593 S.E.2d at 215. Thus, we find that a reasonable
fact finder could infer, based on common knowledge, that there
are inherent dangers in placing heroin capsules and cocaine
residue on a plate within reach of an unattended child.
Jones’ suggestion that the childproof container would have
prevented Donya from opening the bottle and ingesting the drugs
is as unconvincing to us as it was to the trial court. Donya
was an eight-year old boy who was reading and writing his
homework at the time of the execution of the search warrant.
Thus, there is no basis to conjecture he was unable to follow
the simple instructions, “Push Down & Turn” printed on the
bottle cap and take all the heroin capsules he wanted.
10
In addition to the presence of illegal narcotics within
close proximity of an unattended child, the record also reflects
that Jones routinely sold heroin from her apartment while Donya
and other young children were present. In the three months
prior to the execution of the search warrant, Jones admitted she
had been selling approximately 20 capsules of heroin a day.
Before the police raid, the police conducted extensive
surveillance of the apartment and gathered evidence that
narcotics and weapons were present in the apartment. Jones’
drug business required the service of lookouts outside the
apartment, indicating that potentially dangerous conditions were
present, whether from the police raid which occurred, or from
the other attendant dangers of violence in the drug trade. See
Michigan v. Summers, 452 U.S. 692, 702 (1981) (“The execution of
a warrant to search for narcotics is the kind of transaction
that may give rise to sudden violence or frantic efforts to
conceal or destroy evidence”). 3
The totality of this evidence, including the presence of
harmful drugs within arm’s reach of an unattended child and the
3
See also United States v. Bustos-Torres, 396 F.3d 935, 943
(8th Cir. 2005) (“it is reasonable for an officer to believe a
person may be armed and dangerous when the person is suspected
of being involved in a drug transaction”); United States v.
Grogins, 163 F.3d 795, 799 (4th Cir. 1998) (“the connection
between illegal drug operations and guns in our society is a
tight one”).
11
child’s placement within a drug house with the attendant dangers
that entailed, is sufficient to support Jones’ conviction under
Code § 18.2-371.1(B)(1).
Jones argues, however, that this evidence could not support
a finding that that her actions created a probability of harm to
her son, rather than a mere possibility of harm. She contends
that to convict her of felony child neglect in this situation
would be to establish a per se rule that any time there are
illicit drugs in a home with young children, the parent or other
responsible person is guilty of felony child abuse.
When considering the level of danger necessary to support a
conviction under Code § 18.2-371.1(B)(1), we have held that “the
act done must be intended or it must involve a reckless
disregard for the rights of another and will probably result in
an injury.” Barrett, 268 Va. at 183, 597 S.E.2d at 111. Conduct
that is “gross, wanton and culpable” demonstrating a “reckless
disregard for human life” is synonymous with “criminal
negligence.” Cable v. Commonwealth, 243 Va. 236, 240, 415
S.E.2d 218, 220 (1992). Criminal negligence is “judged under an
objective standard and, therefore, may be found to exist where
the offender either knew or should have known the probable
results of his acts.” Kelly v. Commonwealth, 42 Va. App. 347,
356, 592 S.E.2d 353, 357 (2004) (citations omitted).
12
We agree with Jones that a conviction under Code § 18.2-
371.1(B)(1) requires more than a mere possibility of harm. In
the case at bar, however, the totality of the evidence proves a
substantial or probable risk of harm existed. Under an
objective standard, Jones knew or should have known that placing
fourteen capsules of heroin and a plate with cocaine residue in
the same room as her unattended eight-year old son created a
substantial risk of serious injury. She also knew or should
have known that her continuous and illegal drug activity at the
apartment when her young child was present also created a
substantial risk of serious injury from the dangers inherent in
the illicit drug trade.
Our decision in this case is not a per se rule for
violation of Code § 18.2-371.1(B)(1) when the child is living in
the environment of the drug trade. However, neither the trial
court nor the Court of Appeals based their respective judgments
on a per se rule, but on the totality of evidence as presented
in this case. 4 Based on that totality of evidence, as previously
noted, the evidence clearly supports Jones’ conviction.
4
The trial court’s judgment was based on Jones’ actions
placing Donya “in a position where he has direct, personal
access to a drug that can cause death” and “on top of that,
she’s engaged in an activity that creates a high risk of
violence.” Similarly, the Court of Appeals held: “It is this
drug activity, both the sale of drugs from the apartment and the
presence of a controlled substance in close proximity to the
child, that constitutes the willful act required by the
13
CONCLUSION
By engaging in the routine sale of drugs from her home and
permitting her unattended young child access to those drugs,
Jones committed willful acts and omissions that were “so gross,
wanton and culpable as to show a reckless disregard for human
life” under Code § 18.2-371.1(B)(1). Therefore, we will affirm
the judgment of the Court of Appeals.
Affirmed.
statute.” Jones, 46 Va. App. at 719, 621 S.E.2d at 679
(emphasis added).
14